Court File and Parties

COURT FILE NO.: YC-18-000071 DATE: 20190731

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – R.D. and T.S. Defendants

Counsel: M. Rumble, for the Crown M. Owoh, for the Defendant R.D. R. Chartier for the Defendant T.S.

HEARD: June 25, 2019

Restriction on Publication

Pursuant to subsection 110(1) of the Youth Criminal Justice Act, no person shall publish the name of a young person, or any other information related a young person, if it would identify the young person as having been dealt with under this Act. This judgment complies with this restriction so that it can be published.

Cell Phone Search Pre-Trial Ruling

Edwards J.:

Overview

[1] The Applicant in this section 8 Charter Application, R.D., is jointly charged with T.S. with various offences arising out of a carjacking that occurred on January 30, 2017, that resulted in the owner of the stolen vehicle being shot in the abdomen.

[2] On February 12, 2017, the Applicant was arrested by the Toronto Police Services (“TPS”) for a matter unrelated to the carjacking and shooting that occurred on January 30, 2017. I will refer to the carjacking and shooting as “the offence”.

[3] When the Applicant was arrested by the TPS on February 12, 2017, the arresting officer seized a cell phone from the Applicant as a result of a pat-down search. Ultimately, as discussed in the summary of the facts, the cell phone was searched by a technological crime officer of the TPS.

[4] The Applicant seeks a ruling under s. 8 of the Charter to exclude the evidence from the search of the cell phone.

The Facts

[5] The arrest of the Applicant occurred on February 12, 2017 at 2:12 p.m., when he was found in the possession of a loaded prohibited firearm. A pat-down search was conducted. A cell phone was located in the front left pocket of the Applicant’s jacket.

[6] When the Applicant was paraded before the booking sergeant, the cell phone was given a TPS property tag. To the point in time where the property tag was affixed, none of the police officers involved in the arrest and booking examined its contents.

[7] Detective Constable Simas (“Simas”) from the Major Crimes Unit at 31 Division of the TPS was assigned to the case. As he was preparing the case for court, he spoke to Detective Plunkett (“Plunkett”) who was with the TPS Major Project Section conducting a Project named “Chronic”, which was addressing gun crime in the Driftwood area of North York.

[8] Plunkett asked Simas to seize the cell phone, and further advised that a police officer from the Technological Crime Unit (“TCU”) would attend to retrieve the cell phone from him.

[9] Plunkett testified during the course of the voir dire that he wanted to obtain information from someone with technological knowledge as to how best to deal with the cell phone, as it was unlocked at the time that it had been seized when the Applicant was arrested and continued to be unlocked when it was seized by Simas.

[10] Plunkett made enquiries through his detective sergeant, who then made enquiries through the IT Department of the TPS. The essence of the information that he received, was that it was important that the contents of the cell phone be downloaded and secured as soon as possible.

[11] As a result of the information that Plunkett had communicated to him by the IT Department via his detective sergeant, as well as his own prior experience and knowledge that cell phones could be wiped remotely, instructions were given to Simas to hold on to the cell phone and turn it over to the IT Tech Officer, who would then conduct a download of the cell phone contents prior to obtaining a search warrant.

[12] As part of the discussions that Plunkett had with the IT Tech Officer, it was agreed that a download of the contents of the cell phone would be undertaken in order to secure any evidence on the cell phone. There was also a clear understanding between Plunkett and the IT Tech Officer, that a warrant would be required to ultimately secure the data and contents of the cell phone.

[13] In terms of the type of information that Plunkett believed he would find on the cell phone, he testified that from his experience in the wiretap room dealing with the Project Chronic, that he was aware that many of the individuals were of the younger generation and were using application-based communications like Snapchat and Instagram, as opposed to text messaging and actual use of a telephone whether land based or by cell. He further testified that from his experience, there was a strong likelihood that photographs would be found on the cell phone that would likely be of an incriminating nature.

[14] In his evidence in-chief, Plunkett was asked why he told Simas to seize the cell phone and why he did not wait for a warrant. In response to that question, Plunkett testified that he was concerned that there would be a loss of evidence if the contents of the cell phone were not immediately downloaded, an opinion which he had formulated not only on the basis of the information that he been given by the TPS IT Tech Officer, but also based on his prior experience. He further testified about the possibility of the contents of the cell phone being wiped remotely. At no time did he consider seeking the advice of a local Crown Attorney.

[15] Arrangements were made for a TCU Officer from the TPS, Detective Todd Morden (“Morden”), to attend 31 Division. He did so at approximately 9:50 p.m. on February 12, 2017, at which time he took possession of the cell phone and brought it back to the TCU.

[16] In his evidence at the preliminary inquiry, Morden testified that he had a concern with whether there was an application on the cell phone that might initiate a “security wipe” of the cell phone. When he obtained the cell phone from Simas, he understood that it was not password-protected and that it was active and charged. He had, in fact, given instructions to Simas at around 7:00 p.m., to ensure that the cell phone remain fully charged.

[17] Significantly as it relates to the possibility that the cell phone could be wiped remotely, Morden testified that the police have a “bag” that helps prevent access to a WiFi network and thus alleviates any concern that the cell phone can be remotely wiped clear.

[18] After returning to the TCU at approximately 10:30 p.m., Morden completed a preliminary triage of the seized cell phone which consisted of extracting its contents by creating a back-up copy. In essence, what he did was a complete cell phone “dump” of the contents of the cell phone. The cell phone was then secured and sealed until a search warrant could be obtained.

[19] On February 15, 2017, York Regional Police (“YRP”), aware of the arrest of R.D. and the seizure of the cell phone, sought a s. 487 warrant to seize the extraction report which had been generated by the TPS. The application for that warrant was dealt with by Justice of the Peace A. Johnson, who denied the application. In denying the application, she provided brief written reasons which I reproduce in their entirety below:

pg 22 par 37(g) T.P. Services extracted from cell phone in order to protect the loss of data. Pg 23 par 4 states the same. However , 1. under what authority was this done? If case law in support ( state it ) 2. to simply request “the extracted data” is insufficient. The data sought must be specific & believed to be in support of the charges. ( eg contacts/call log/browser history).

[20] The particular paragraphs from the Information to Obtain (“ITO”) which Justice of the Peace Johnson was questioning were found on page 22, paragraph 37(g), and page 23, paragraph 48 (misnamed as paragraph 4 in her handwritten notation). I reproduce in their entirety, paragraphs 37(g) and paragraph 48 from the ITO that was reviewed by the Justice of the Peace.

37(g) R.D. was also found to be in possession of a cell phone which Toronto Police extracted in order to protect the loss of data. (noted as footnote 22). This data extraction is what I am requesting to search for from Toronto Police Service that will afford evidence to the carjacking investigation. 48. Toronto police service seized R.D.’s cell phone incident to his arrest for an unrelated firearms investigation. In order to protect from the loss of data, Toronto police extracted the contents of it. If the warrant is granted, Toronto police will provide a copy of the extraction which is stored on Toronto Police systems.

[21] In the course of argument, the Crown candidly conceded that the concerns that were being raised by Justice of the Peace Johnson in her handwritten endorsement, were concerns that required the affiant of the ITO to provide further evidence with respect to the exigent search and circumstances that existed, that would have allowed the TPS to extract without a warrant the contents of the cell phone in order to protect the loss of data.

[22] Recognizing that the warrant had been turned down, the officer in charge of the carjacking - Detective Coulson (“Coulson”), contacted Morden at the TPS and asked him questions that would allow him to satisfy the concerns that had been raised by the Justice of the Peace. Neither Coulson nor Morden kept any notes of that conversation.

[23] What resulted from the conversation between Coulson and Morden was the insertion of paragraph 42 into the ITO. The affiant of the ITO was Detective Constable Colin Organ (“Organ”). I reproduce in its entirety, paragraphs 41 and 42 of Organ’s ITO sworn on February 16, 2017:

41. On February 15, 2017 I sought judicial authorization for a search warrant to obtain a copy of R.D.’s cell phone data extract which was denied by Justice of the Peace A. Johnson for reasons attached to Appendix “D”. In summary, the reasons were inquiring into the authority Toronto Police used to extract the cell phone and that the data sought must be specific and in support of the charges.
42. As a result of the reasons provided by Justice Johnson, Detective Constable Coulson spoke with Toronto Police tech crimes unit regarding R.D.’s cell phone extraction authority. I have spoken to Coulson, and learned the following: a) The data from the cell phone was extracted under exigent circumstances to prevent the loss of evidence. There were security applications on the phone that remove the data within twenty four hours, therefore the data would be deleted by the time a warrant was obtained and executed on the physical phone itself if the data wasn’t extracted. b) R.D.’s cell phone was an IPhone and if the phone locked, police are unable to access the data within, even if they had obtained judicial authorization. c) The cell phone data was extracted under exigent circumstances to preserve the data but it was not analysed. The data will be analysed under the judicial authorization of a search warrant.

[24] Very simply put, the information contained in paragraph 42(a) reproduced above is false. In fact, there were no security applications on the cell phone that could remove data within 24 hours.

[25] When questioned about paragraph 42(a), Coulson testified that he did not recall getting any information from anyone at the TPS to the effect that there was a security application on the cell phone that could remove the contents or data from the cell phone within 24 hours. In cross-examination, Coulson stated that he was unaware that Morden had testified previously that in fact there was no security application on the cell phone.

[26] In re-examination, Coulson was given the opportunity to provide an explanation for the inaccuracy. Coulson stated that as he was speaking to Morden, Organ was sitting across from him and he was essentially relaying the information that he was being provided by Morden. As such, Organ was obtaining essentially a contemporaneous reflection of the telephone call between Coulson and Morden, albeit one that was not on a speaker phone. Coulson testified that he observed Organ typing the correction as he was speaking to Morden on the telephone.

[27] Morden, in his evidence in the voir dire, was specifically asked as to whether he told Coulson that there was in fact a security application on the cell phone, to which he testified that he did not recall that conversation but that it was not uncommon to discuss with other police officers, the possible state of the device. He was further questioned as to his evidence at the preliminary inquiry, as to whether he told Coulson there was no security application on the cell phone, to which Morden testified “I don’t recall”. He further elaborated that it was common to discuss security applications being found on cell phones after they had been seized, but that he could not recall that specific conversation that day with Coulson.

[28] Justice of the Peace Johnson issued the search warrant after receipt of the revised ITO. The search warrant, however, had certain parameters, one of which only allowed for the search of the contents between January 30, 2017 and February 9, 2017.

[29] With that search warrant and parameter, it was ultimately discovered that the parameters were not workable and a further search warrant was submitted on February 24, 2017 addressing, in part, the issue with respect to those parameters. It is worth noting in that ITO, again authored by Organ, that the misinformation with respect to the exigent circumstances in paragraph 43 remained unchanged. A further paragraph 47 was added, which I reproduce in its entirety below:

47. On February 24th, 2017 I spoke with Detective Constable Coulson and learned the following: a) Toronto Police tech crimes unit advised that due to the exigent nature of the initial extraction, there may be further data on the phone that was not fully extracted. Toronto Police tech crimes unit would need to conduct further examinations of R.D.’s cell phone which would be provided to investigators. b) There is no way for the tech crime unit, or investigators to extract or review the data on the cell phone with a date restriction. The data is found within the device, is not necessarily sorted by date, and a number of items do not have date stamps. c) R.D.’s cell phone is still stored at Toronto Police 31 Division at 40 Norfinch Drive, Toronto.

[30] It is noteworthy in paragraph 47(a) reproduced above, that Coulson still maintained that there was an exigent nature of the initial extraction based again on information received from TPS, presumably Morden.

[31] As a result of the downloading of the contents of the cell phone, there is evidence of photographs of the Applicant holding a firearm resembling the firearm seen on security video and described by one of the victims. As well, there are copies of online news stories referencing the carjacking and communications in which the Applicant references switching licence plates on the vehicle that was stolen.

Position of the Crown

[32] The Crown does not in any way dispute that the search of a cell phone, like the search of a computer, may involve a significant intrusion on the privacy of the owner of the cell phone. The Crown does not rely on any of the exceptions set forth in the decision of the Supreme Court of Canada in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, as summarized by Cromwell J. at para. 83 as follows:

To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8 where:

1. The arrest was lawful;
2. The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are: (a) Protecting the police, the accused, or the public; (b) Preserving evidence; or (c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;
3. The nature and the extent of the search are tailored to the purpose of the search; and
4. The police take detailed notes of what they have examined on the device and how it was searched.

[33] The Crown, while not relying on Fearon, argues that the search of the cell phone was permitted by s. 487.11 of the Criminal Code (“the Code”), which provides as follows:

A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. [Emphasis added.]

[34] The Crown argues that the arrest of R.D. on February 12, 2017 for the unauthorized possession of a firearm, was made on reasonable grounds and was therefore lawful. The Crown also argues that the pat-down search of R.D. which was conducted after his arrest, was done for officer safety and for the safety of R.D. As a result of that pat-down search, the cell phone was located and seized. The Crown argues that the seizure of the cell phone was lawful, having been placed in a property bag while he was detained in custody. Relying on the decision of the Court of Appeal in Figueiras v. Toronto (City) Police Services Board, 2015 ONCA 208, 2015 O.J. No. 1515 (C.A.) at paras. 41, 42 and 84 through 85, the Crown argues that the continued detention of R.D.’s cell phone was lawful.

[35] As it relates to the seizure of the cell phone by Simas, the Crown argues that Plunkett had reasonable grounds to believe that the contents of R.D.’s cell phone would afford evidence with respect to the commission of an offence, and as such its seizure by Simas was lawful given the exigent circumstances which prevented the police from obtaining a warrant prior to the cell phone ultimately being returned to R.D.

[36] The Crown’s position is entirely dependent upon s. 487.11 of the Code and the determination of whether or not exigent circumstances existed for the re-seizure of this cell phone by Simas, and the ultimate download of its contents prior to the obtaining of any warrant.

[37] The Crown relies on Morden’s evidence from the preliminary hearing, where he stated that he wanted to ensure that the cell phone “was not going to get changed or that we were not going to lose the evidence”. The Crown also relies on his evidence from the preliminary hearing, that the police were concerned with the existence of “an application that may initiate a security wipe of some kind or protocol”. As such, the Crown argues that it was not unreasonable for the police to immediately make a “back-up copy” of the contents of the cell phone, even before checking for the presence of such an application given the potential for the destruction of evidence.

Position of the Defence

[38] Mr. Owoh, on behalf of R.D., does not dispute that the presence of exigent circumstances provides a justified legal basis for a warrantless search and seizure by a police officer. On the facts before this court, however, Mr. Owoh argues that there is no evidence that the police needed to conduct a “dump” of the cell phone as there was no need for immediate action on the part of the police, nor was there any urgent or critical situation where the police would have had a realistic opportunity to seek prior judicial authorization. Both the Crown and defence acknowledge that the safety of the officers involved in the arrest of R.D. did not constitute exigent circumstances, nor were there any public safety issues that would have provided the basis for exigent circumstances.

[39] In the context of a cell phone search, Mr. Owoh argues that the warrantless search of the cell phone will only be justified where there are reasonable grounds to believe that there was an imminent loss or destruction of evidence, which would be prevented by a warrantless search (see R. v. Powell, 2017 ONSC 6482, at para. 55).

Analysis

[40] I am satisfied that the arrest of R.D. on February 12, 2017 by the TPS for a firearms charge was lawful. I am also satisfied that the pat-down search, which was conducted incident to arrest that revealed the existence of the cell phone, was also lawful. I am not satisfied that the cell phone dump was conducted as a result of any exigent circumstances.

[41] Chronologically, R.D. was arrested on the firearms charge on February 12, 2017 at approximately 2:12 p.m. The cell phone was seized incident to arrest, sometime between the time of his arrest and when he was paraded at the local police station at approximately 2:42 p.m. His cell phone was placed in a property bag, having been tagged with a TPS property tag.

[42] Shortly after 5:00 p.m. on February 12, 2017, Simas spoke with Plunkett who was involved with Project Chronic, during the course of which investigation it was determined that R.D. could be a person of interest, not only with respect to Project Chronic but also potentially with respect to the carjacking which is presently before this court. As a result of that discussion, shortly after 5:00 p.m., Simas was instructed to seize R.D.’s cell phone in connection with both Project Chronic and the carjacking. The re-seizure of the cell phone had nothing to do with respect to the original seizure of the cell phone, which was incidental to the arrest of R.D. in connection with a firearms charge unrelated to the charges before this court.

[43] Acting on the instructions from Plunkett, Simas seized R.D.’s cell phone from the TPS property bag. He checked the cell phone and determined that it was unlocked. At some point prior to the seizure of the cell phone by Morden, the cell phone was re-charged by Simas.

[44] Morden attended at 31 Division at approximately 9:50 p.m., and took custody of R.D.’s cell phone. The cell phone was taken back to Morden’s office, where he did a complete extraction or dump of the cell phone.

[45] The cell phone had been in the custody of the TPS since the pat-down search of R.D., which took place sometime between 2:00 p.m. and 2:30 p.m. As such, between the time of the pat-down search and the actual extraction or dump conducted by Morden at 9:50 p.m., approximately seven hours had elapsed. During that time period there is absolutely no evidence whatsoever, that any of the police officers associated with the arrest of R.D. and the seizure of the cell phone did anything to establish that the cell phone could be remotely wiped, and the contents of the cell phone ultimately lost forever.

[46] The alternative to conducting a warrantless search of the cell phone was to apply for a search warrant. Plunkett testified that two judges had been assigned to Project Chronic. He determined it would have taken “many hours” to have obtained a warrant, and he was concerned that if he did in fact wait for a warrant there would be a loss of evidence. In this regard, he relied on his past experience that cell phones could lock and the police would lose the opportunity to obtain the evidence contained within the cell phone. Plunkett also testified about his concern that the contents could be “wiped” remotely, an experience he stated had happened to him on prior occasions.

[47] It is also important to observe that the purpose for which the contents of R.D.’s cell phone was extracted, was not in relation to the charge that gave rise to the search of his person incident to arrest. The arrest of R.D. was for possession of a firearm. The purpose for which the cell phone dump was conducted by Morden was in relation to Project Chronic, completely unrelated to the firearms charge for which R.D. had been arrested on February 12, 2017. In that regard, I have a real concern that the seizure of the cell phone and subsequent data extraction can be justified on the basis of the decision of the Supreme Court of Canada in Cloutier v. Langlois, [1991] 1 S.C.R. 158, and R. v. Caslake, [1998] 1 S.C.R. 51. As the Court of Appeal in R. v. Balendra, 2019 ONCA 68, 2019 O.J. No. 608, at para. 41 stated:

In Caslake the court clarified with respect to the “discovering evidence” purpose, that, if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested (at para. 22, emphasis in original).

[48] The definition of exigent circumstances was recently reviewed at length by K.L. Campbell J. in R. v. Powell, 2017 ONSC 6482. At para. 55 of his Reasons, Campbell J. summarizes the principles that apply to a warrantless search and seizure of a cell phone as follows:

In summary, applying these general principles in the context of cell phone searches, the warrantless seizure and search of a cell phone, on the arrest of a suspect, will be justified on the basis of exigent circumstances where: (1) there is a reasonable basis to suspect a search of the cell phone may prevent an imminent threat to safety; or (2) there are reasonable grounds to believe that the imminent loss or destruction of evidence may be prevented by a warrantless search. A lower legal standard for exigency operates to protect public safety, than to preserve evidence. The necessary exigency exists to justify a warrantless search of a cell phone to protect safety provided only there is a “reasonable suspicion,” whereas the necessary exigency justifying such a search to gather evidence must be based upon “reasonable belief.” Notwithstanding the lower standard of “reasonable suspicion” that governs cell phone searches where there is an imminent threat to safety, the search undertaken by the police must be “reasonably necessary” in the context of the exigent circumstances presented. See R. v. Feeney, at para. 52; R. v. Golub, at paras. 4-54; R. v. Fearon, at paras. 73, 175-179; R. v. Kelsey, at para. 52, 54, 56-58; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 31-47.

[49] In completing his analysis of the definition of exigent circumstances, Campbell J. goes on in para. 56 to emphasize that exigent circumstances are by their very nature “extraordinary”, and “can properly be invoked to justify warrantless searches or seizures ‘only where necessary’”.

[50] Applying the considerations that are reviewed by Campbell J. in Powell, those circumstances as they presented immediately after the arrest of R.D. could only relate to the charge for which R.D. was arrested. The purpose for which the cell phone dump was conducted by Morden was in relation to Project Chronic. There were no extraordinary circumstances that could justify the warrantless search of the cell phone, as it relates to the charge that R.D. was facing when he was arrested.

[51] As it relates to the search warrant relied upon by the YRP charged with obtaining a copy of the contents of the cell phone, it is clear that Justice of the Peace Johnson had concerns herself with respect to the exigent search and circumstances that existed, which would have allowed the TPS to extract without a warrant the contents of the cell phone in order to protect the loss of data on that cell phone.

[52] With those initial concerns, Justice of the Peace Johnson refused to grant the search warrant. It was only when the issue of exigent circumstances was addressed in the ITO sworn on February 16, 2017, that the warrant was ultimately granted. The information contained in the February 16, 2017 ITO addressing the exigent circumstances was, however, completely false. The cell phone did not have – as represented in the ITO, an application that could remove the data from the cell phone within 24 hours.

[53] In my view, for the reasons that I have reviewed there simply were no exigent circumstances that could justify the warrantless search of R.D.’s cell phone. The search that was conducted could not be justified under s. 487.11 of the Code. As such, I am satisfied that there was a breach of R.D.’s right as guaranteed by s. 8 of the Charter. There remains the question as to whether the breach of s. 8 is such that the admission of the contents of the cell phone would not bring the administration of justice into disrepute. This engages a Grant analysis required by s. 24(2) of the Charter.

[54] Counsel for the Crown argues that unlike the situation in R. v. Powell, the police did not undertake a “comprehensive review of the entire contents of the ‘phone dump’ in the absence of prior judicial authorization”. Rather, the Crown argues that what the police did was seize the evidence in order to “freeze it” and preserve it, and thereafter to seek judicial authorization in order to review the evidence.

[55] I entirely disagree with the characterization of the conduct of the police as it relates to this issue of the seriousness of the State conduct. The extraction of the contents of the cell phone, was done entirely by the police in connection with an unrelated police investigation that had nothing to do with the original arrest of R.D.

[56] Compounding the conduct of the police as it relates to the initial cell phone dump, is the mischaracterization of the exigent circumstances to Justice of the Peace Johnson. While it is impossible on the evidence before me to arrive at a conclusion that the affiant of the ITO intentionally sought to mislead the court with respect to the existence of an application on the cell phone that could remove the data within 24 hours, it was incumbent on that affiant to ensure that the information before the court was accurate and truthful. The cell phone simply did not have an application that could remove data within 24 hours, and as such the overriding issue of exigent circumstances - which clearly was forefront in the mind of the issuing Justice of the Peace, was inaccurate information that lead ultimately to the issuance of a search warrant.

[57] The court cannot condone such serious misconduct on the part of the police seeking such a search warrant where at its highest such misconduct could said to be intentional, but at the very least amounts to gross negligence in putting information before the court which clearly was not accurate. As such, in my view, the first aspect of the Grant analysis mandated by s. 24(2) of the Charter favours exclusion of the evidence.

[58] As for the impact on the Charter-protected interest of R.D., this issue has been addressed in numerous decisions over the last three or four years. In R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621 at para. 96, Cromwell J. speaking for the majority acknowledged:

The second factor concerns the impact of the breach on the Charter-protected interests of the accused.

[59] Today’s cell phones have similar capabilities to a computer, both in terms of the storage of information and the means by which that information can be accessed. It is difficult to argue that R.D. did not have a significant privacy interest in the contents of his cell phone. As Campbell J. in Powell recognized in para. 88 of his Reasons:

…the accused had a high level of privacy in the contents of his BlackBerry cell phone, and could reasonably have expected that the police would not have been able to conduct a comprehensive examination of all of its contents without obtaining prior judicial authorization. Accordingly, the warrantless examination of the ‘phone dump’ from the accused’s seized BlackBerry would have had its own significant impact upon the Charter-protected interests of the accused, even if it could be said that a search warrant would inevitably have been issued.

[60] Crown counsel argues that the fact situation in Powell differs significantly from the fact situation before this court, as there is no evidence that the police did anything other than make a mirror image of the contents of R.D.’s cell phone. There is no evidence that that mirror image was then searched by the police prior to obtaining a search warrant. In essence, Crown counsel argues that the actions of the police amounted to nothing but a “preliminary triage” of the applicant’s cell phone when its contents were extracted, and thereafter secured pending the issuance of the warrant. With respect, I disagree. The police believed that they were acting on the basis of exigent circumstances that required the cell phone of R.D. to be the subject of a phone dump. Whether that phone dump was thereafter reviewed by the police is a factor that this court can, and obviously did take into account, in Powell. The fact remains, however, that the owner of the cell phone still has a heightened privacy interest in the contents of that cell phone, and to manipulate the contents in any way, shape or form by the conduct of a “phone dump”, in my view results in a significant impact on the privacy interests of the owner of that cell phone. The application of the second factor of the Grant analysis, in my view, also militates in favour of the exclusion of the evidence found on the cell phone.

[61] As for the third part of the Grant test that relates to the truth-finding function of the trial, it is conceded by counsel for R.D. that the third prong of the analysis under s. 24(2) favours – as it generally does, admission of the evidence. In that regard, there does not appear to be any dispute that the contents of the cell phone included photographs of R.D. holding a firearm, which is said to resemble the firearm seen on security video and described by Adrian. As well, the cell phone is said to have included copies of online news stories that referenced the carjacking, together with communications in which R.D. references the switching of licence plates. There does not appear to be any dispute that this evidence, if it was otherwise admissible, is both relevant and highly probative in terms of the circumstantial evidence that the Crown could rely upon to establish the guilt of R.D. beyond a reasonable doubt.

[62] In R. v. McGuffie, 2016 ONCA 365, Doherty J.A. provides guidance with respect to the proper s. 24(2) analysis that trial judges must conduct, and noted at paras. 61 through 63 the following:

After Grant, at paras. 71-86, the admissibility of evidence under s. 24(2) is approached by examining:

• the seriousness of the Charter-infringing state conduct; • the impact of the breach on the Charter-protected interests of the accused; and • society’s interest in an adjudication on the merits.

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

[63] Trial judges could take from McGuffie that if the first two prongs of the Grant analysis favoured exclusion, it would be rare that the third prong of the Grant analysis would allow for inclusion of evidence that would otherwise have been excluded.

[64] Two recent decisions of the Supreme Court of Canada in R. v. Le, 2019 SCC 34, and R. v. Omar, 2019 SCC 32, interestingly provide varying viewpoints on the manner in which the three Grant factors should be balanced in a s. 24(2) application.

[65] As it relates to society’s interest in the adjudication of a case on its merits, the Supreme Court in Le stated at para. 158:

While we have observed that the third line of inquiry under Grant typically pulls towards inclusion of the evidence on the basis that its admission would not bring the administration of justice into disrepute, not all considerations will pull in this direction. While this inquiry is concerned with the societal interest in “an adjudication on the merits” (Grant, at para. 85), the focus, as we have already explained, must be upon the impact of state misconduct upon the reputation of the administration of justice. While disrepute may result from the exclusion of relevant and reliable evidence (Grant, at para. 81), so too might it result from admitting evidence that deprives the accused of a fair hearing or that amounts to “judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies” (Collins, at p. 281). An “adjudication on the merits”, in a rule of law state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms.

[66] It is worth noting that the decision of the Supreme Court of Canada in Le, was a three to two decision of a five member panel of the Court. Three of the judges who authored or concurred with the majority, later became the three dissenters in a seven member panel of the Supreme Court which decided R. v. Omar one week after the Le decision was decided. Omar is a one page decision of the Supreme Court of Canada, which allowed the appeal substantially for the reasons of Brown J.A. of the Ontario Court of Appeal.

[67] Ultimately, this court must balance the assessments under each of the three Grant lines of enquiry in its determination of whether taking all of the circumstances into account, admitting the impugned evidence trial would bring the administration of justice into disrepute. That said, I agree with the recent comments of Kent J. in R. v. Oswald, 2019 BCSC 892, at para. 44 that:

Much academic debate is possible (and perhaps is likely) respecting subtle differences in language concerning the balancing exercise as articulated in R. v. McGuffie, 2016 ONCA 365 at paras. 61–63, R. v. Omar, 2018 ONCA 975 where the dissenting opinion was "substantially endorsed" by the majority, at 2019 SCC 32, and para. 142 of Le. The minority opinion in Le did not directly challenge the majority's slight re-framing of the McGuffie paradigm but did suggest "Grant requires a more nuanced, contextual approach, one that involves a realistic appraisal of the situation in light of all the circumstances" (para. 294) and would have placed much greater weight on the third Grant factor (see paras. 300–301).

[68] In summary, I have concluded that both the first and second Grant factors militates in favour of exclusion of the evidence found from the cell phone dump of R.D.’s cell phone. As it relates to the third factor, while society of course has an interest in the adjudication of a case on its merits, I am more than satisfied that to admit this evidence would in fact bring the administration of justice into disrepute. It would be condoning the actions of the police in swearing an ITO responding to concerns of the Justice of Peace as it relates to exigent circumstances, the contents of which ITO were either intentionally false or, alternatively, grossly negligent. One way or the other, there is an obligation on the police to ensure that when a Justice of the Peace seeks clarification as it relates to issues that concern the justice prior to the issuance of a warrant - as in this case, the existence of exigent circumstances there is a heightened obligation on the affiant of the ITO to ensure that that information is accurate. That did not happen in this case, and in my view to admit this evidence would in fact bring the administration of justice into disrepute.

[69] The application of R.D. to exclude the evidence as it relates to the contents of his cell phone is therefore granted.

Justice M.L. Edwards

Released: July 31, 2019

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – R.D. & T.S. CELL PHONE SEARCH PRE-TRIAL RULING Justice M.L. Edwards

Released: July 31, 2019